Shri Hitesh Kishorechand ... vs The State Of Maharashtra
2008 Latest Caselaw 29 Bom

                                 (1)




                IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                            BENCH AT AURANGABAD




                                                                    
                 CRIMINAL WRIT PETITION NO. 623 OF 2006




                                            
     1. Shri Hitesh Kishorechand Raithatha,
        R/o Jaishree Hospital, Jalna.
     2. Swati Suresh Budani,
        R/o Sadar Bazar, Jalna.
     3. Shri Purushottam Ramnath Somani,




                                           
        R/o Murari Nagar, Jalna.
     4. Sow. Ila Hitesh Raithatha,
        R/o Jaishree Hospital, Jalna.                 PETITIONERS

                VERSUS




                                  
     1.     The State of Maharashtra

     2.
                     
         Pandit Laxmanrao Kulte
         Died through L.Rs.
     2a) Shantabai Panditrao Kulthe
     2b) Sonali s/o Panditrao Kulthe
                    
         Both r/o Khardekar Complex,
         College Road, Jalna.                         RESPONDENTS

             .....

Mr. P.M. Shah, Senior Counsel, holding for Mr. P.S. Shendurnikar, advocate for the petitioners.

Mr. B.J. Sonawane, A.P.P. for respondent No. 1. Mr. M.P. Kale, advocate for respondent Nos. 2-a

and 2-b.

.....

[CORAM: V.R. KINGAONKAR, J.]

DATE : 13th August, 2008

----------------------------

ORAL JUDGEMENT :

1. By this petition, petitioners impugn

correctness, propriety and legality of charge framed

against them in Sessions Case No. 86/2003 pending on

file of learned 4th Adhoc Additional Sessions Judge,

Jalna. They also challenge order rendered by learned

Adhoc Additional Sessions Judge below their

application (Exh-66) seeking discharge. By the

impugned order dated 29th September, 2006, their

application (Exh-66) for the discharge to the extent

of offence punishable under section 18 of the

Transplantation of Human Organs Act, 1994 and under

section 328 read with section 34 of the I.P. Code,

came to be dismissed.

2. Admittedly, the petitioners are Medical

Practitioners. It is not necessary to elaborately set

out the allegations made by the complainant (deceased

Pandit Kulthe).

ig Suffice it to say that on 21st April,

2000, wife of deceased complainant, namely, Smt.

Shantabai was admitted in the hospital of the

petitioner Nos. 1 and 4, which is styled as "Jaishree

Hospital". She was found pregnant and was advised to

visit the hospital at interval of a fortnight. There

is no dispute about the fact that she was being

medically treated by the petitioner No. 4 Smt. Ila.

Since it was noticed that opening of her uterus was

dilated, a minor surgery was carried out on Smt.

Shantabai on 4th June, 2000 in the hospital and the

track at opening was sutured. She was thereafter

discharged from the hospital. The stitching was

removed in due course in November, 2000. In the

evening of 28th November, 2000, Smt. Shantabai

complained of delivery pains and, therefore, was

shifted to the hospital of petitioner Nos. 1 and 4.

At about midnight, she was rushed to operation

theatre.

3. The complainant alleged that till about 1.30

a.m., the petitioners were making frantic efforts, but

he was not informed about anything. His wife was

operated. He noticed that blood was oozing from her

private part when he was allowed to see her in the wee

hours. In the early morning, he was asked to collect

blood bottles as she needed supply of blood of her

blood group. So also, Dr. Mozes was called to see

her.

On 29th November, 2000, uptill 2 p.m., operation

was conducted and he was informed that caesarian was

performed. He was informed that Smt. Shantabai

delivered a stillborn female child. On 16th December,

2000, Smt. Shantabai was discharged. As per

allegations in the complaint, the petitioners prepared

certain fabricated documents to show that Smt.

Shantabai gave her consent for the operation.

Allegedly, she has become disabled due to impairment

of lower extremity as a result of incorrect diagnosis

and improper medical treatment and the operation which

was negligently carried out by the petitioners. It is

alleged that during course of the operation, her

uterus was removed without her consent.

4. The chargesheet is filed against the

petitioners for offences punishable under section

304-A, 328, 468 read with section 34 of the I.P. Code

and section 18 of the Transplantation of Human Organs

Act, 1994.

5. There is no dispute about the fact that before

framing of the charge, an application was given by the

petitioners to discharge them to the extent of offence

punishable under section 18 of the Transplantation of

Human Organs Act, 1994 and under section 328 read with

section 34 of the I.P. Code. That application was,

however, not pressed into service. The learned Adhoc

Additional

Sessions Judge framed a charge at Exh-21.

Thereafter, another application (Exh-66) was moved by

the petitioners claiming discharge from the said

offences. The learned Adhoc Additional Sessions Judge

rejected the application.

6. Heard learned advocates for the parties and

learned A.P.P.

7. At this juncture, it is impermissible to

analyze the evidence on record. It is, however, amply

clear that the learned Adhoc Additional Sessions Judge

did not follow appropriate procedure as required under

section 228 of the Criminal Procedure Code before

framing of the charge. It is necessary for the

Sessions Court to consider the record of the case and

hear both the sides before framing of the charge. It

is significant to note that section 228 (1) of the

Criminal Procedure Code contemplates consideration of

the record and hearing of submissions of the accused

and the prosecution. So, unless hearing is given to

both sides, the charge cannot be framed. The Sessions

Judge is required to form an opinion to the effect

that there is ground for presuming that the accused

has committed an offence which is exclusively triable

by the Court of Sessions. It is only after formation

of such an opinion that he may proceed to frame a

charge. There appears no such exercise carried out by

the learned

Adhoc Additional Sessions Judge in the

present case. The framing of charge is not an empty

formality. It requires consideration of the material

on record notwithstanding any request for discharge by

the accused. For example, if an accused is said to

have given a slap on person of deceased and the death

as per the report of post mortem examination is on

account of some decease, though the accused will not

claim any discharge, yet, on the face of record,

charge for offence under section 302 of the I.P. Code

cannot be framed because there may not be ground for

presuming that the accused has committed an offence

which is exclusively triable by the Court of Sessions.

Needless to say, it is not on say of the accused or

say of the prosecution that the onerous duty to be

performed is required to be discharged by the Court of

Sessions. It is for the Court of Sessions to take a

preview of the material on record before preparing of

the charge. The Court of Sessions cannot blindly

frame the charge without adhering to the nature of

allegations.

8. In the face of it, though there is material on

record to proceed against the petitioners for offences

punishable under section 468 and 304-A read with

section 34 of the I.P. Code, yet, there is hardly any

material to proceed against them for offence under

section 328 read with section 34 of the I.P. Code.

The necessary ingredients of offence under section 328

of the I.P. Code require intention to cause hurt by

means of poison or any other stupefying, intoxicating,

or unwholesome drug, or any other thing with which

such a person knows it to be likely to cause the hurt.

By no stretch of imagination, it can be said that the

petitioners could not have any intention, whatsoever,

even in their wildest dreams, to cause hurt to the

patient or the child in the womb. They were making

frantic efforts to avoid the evil. It may be found

after fulldressed trial that there was improper

treatment given to the patient or that the death of

the infant was due to some medical negligence. The

petitioners have not challenged the correctness of the

charge to the extent of offence under section 304-A

and 460 or 420 read with section 34 of the I.P. Code.

9. Mr. Kale M.P., would submit that once the

charge is framed, the subsequent application was

untenable. He would submit that the learned Sessions

Judge was not empowered to discharge the petitioners

after framing of the charge. He seeks to rely on

"Pramod Pramod Narayan Bandekar & another vs. State of

Maharashtra" 2008 (4) Mh.L.J. 347.

                                                        347            The      judgement




                                                            
     rendered        by        a Single Bench of this Court deals                        with

     the     question of discharge in the context of                              criminal

     revision        application which was subject matter of that




                                             
     decision.        The revisional jurisdiction is limited and,
                           

therefore, this Court may not have interfered with the

order of learned Sessions Judge. In the exercise of

writ jurisdiction, a patent error can be rectified.

One cannot be oblivious of the provision under section

216 of the Criminal Procedure Code. It gives power to

the Court to alter or add any charge at any time

before the judgement is pronounced. Obviously, once

the charge is framed, it cannot be said that the same

can not be subjected to any kind of further

alterations. The same Court itself can, in any

appropriate case, alter or add the charge in the

exercise of power under section 216 of the Criminal

Procedure Code before the judgement is delivered.

10. Mr. Kale, would point out that there is

material to show that hysterectomy was carried out

during course of treatment of Smt. Shantabai. He

would submit that removal of the uterus without her

consent would come within ambit of section 18 of the

Transplantation of Human Organs Act, 1994. He would

submit that sub-clause (1) of section 18 is in two (2)

parts, one related to removal of human organ for the

purpose of transplantation and other pertaining to

removal of human organ without authority. The

relevant provision may be reproduced for ready

reference as follows.

"18.

18. Punishment for removal of human organ

without authority -

(1) Any person who renders his services to

or at any hospital and who, for purposes of

transplantation, conducts, associates with, or

helps in any manner in, the removal of any

human organ without authority, shall be

punishable with imprisonment for a term which

may extend to five years and with fine which

may extend to ten thousand rupees."

A plain reading of the above provision would make it

manifest that the removal of human organ may be

punishable under section 18 in case it is so done for

purpose of transplantation and that too without

authority. The provisions contained in the

Transplantation of Human Organs Act, 1994, basically

are aimed at arresting the evil of trading in human

organs for transplantation. The Preamble thereof

declares the aims and objects of the Act. There is no

need of mincing words to ferret out correct meaning of

the expressions used in section 18 (1) if the same is

considered conjointly with the aims and objects of the

Act. It follows, therefore, that removal of human

organ during course of medical treatment or the

operation without any kind of nexus with misuse of the

same for transplantation will not come within ambit of

section 18. There is absolutely nothing on record to

show that the removal of uterus was done with a view

to

misuse it commercially for transplantation. It is

nobody's case that the petitioners are dealing in any

kind of racket of human organs, for misuse to gain

monetory benefits.

11. There is no doubt in my mind that the acts

complained of in the FIR do not come within ambit of

section 18 of the Transplantation of Human Organs Act,

1994 and, therefore, charge could not have been framed

against the petitioners for the said offences, nor the

charge could have been framed for offence punishable

under section 328 read with section 34 of the I.P.

Code. The material on record, even if taken as it is,

would not crystalize any ingredient of the said

offences. The petitioner's request for discharge

could have been considered as a request for alteration

of the charge. They were not asking for full-fledged

discharge from all the offences and in the entirety.

Considering these aspects of the matter, this is a fit

case in which a part of the impugned charge must be

pruned to the extent of one under section 328 read

with section 34 of the I.P. Code and section 18 of

the Transplantation of Human Organs Act, 1994.

12. In the result, the petition is allowed. The

learned Sessions Judge shall delete the charges

referred to above by alteration of the same and may

add charge for offence under section 279 and/or 337 of

the I.P.

Code. The remaining part of the charge,

however, is kept intact and the trial may proceed to

the extent of such remaining part of the charge,

alongwith added charges.

[ V.R. KINGAONKAR ]

JUDGE

NPJ/CRIWP623-06